WASHINGTON -- A federal judge has dismissed more than 100 habeas corpus lawsuits filed by former Guantanamo captives, ruling that because the Bush and Obama administrations had transferred them elsewhere, the courts need not decide whether the Pentagon imprisoned them illegally.
The ruling dismayed attorneys for some of the detainees who had hoped any favorable U.S. court findings would help clear their clients of the stigma, travel restrictions and, in some instances, perhaps more jail time that resulted from their stay at Guantanamo.
U.S. District Judge Thomas F. Hogan wrote he was "not unsympathetic" to the former detainees' plight. "Detention for any length of time can be injurious. And certainly associations with Guantanamo tend to be negative," he wrote.
But the detainees' transfer from Guantanamo made their cases moot. "The court finds that petitioners no longer present a live case or controversy since a federal court cannot remedy the alleged collateral consequences of their prior detention at Guantanamo," he wrote.
Hogan's ruling, issued last Thursday, but not widely publicized, closed the files on 105 habeas corpus petitions, many of which had been pending for years as the Bush administration resisted the right of civilian judges to intervene in military detentions. The U.S. Supreme Court resolved that issue in 2008, ruling in Boumediene v. Bush the detainees could challenge their captivity in civilian court. Since then, judges have ordered the release of 34 detainees while upholding the detention of 12.
Attorneys for the ex-detainees were deciding Monday whether to appeal the ruling to the U.S. Court of Appeals for the District of Columbia, said Shayana Kadidal, an attorney at New York's Center for Constitutional Rights, which has taken the lead in championing Guantanamo habeas petitions.
The former prisoners who had filed the dismissed suits ranged from "people who disappeared in Libyan prison to people who are home living with their family and can't get a job," Kadidal said.
The "vast, vast majority" of former Guantanamo prisoners are under some form of travel restriction, he said, as a result of either transfer agreements between the United States and where they now live or the stigma of having spent time in U.S. military custody.
"If you want to do haj at some point in your life," he said, referring to a Muslim's duty to make a pilgrimage to Mecca, a freed detainee would need to get those restrictions lifted.
Moreover, he added, CCR affiliated attorneys have tracked former captives to a prison at Policharki, Afghanistan, which was once run by the U.S. military. He said "the U.S. may be pulling the puppet strings" of their continued captivity.
In the case of two men sent home to Sudan, according to an affidavit filed by an investigator with the Oregon Federal Public Defender's office, which is representing them, the United States required as a condition for their release that Sudan seize their travel documents and prevent them from leaving the country.
Hogan said the attorneys for the former detainees hadn't offered enough proof that other countries were operating essentially as U.S. proxies. "Petitioners are short on examples, except for the fact that former Guantanamo detainees from Afghanistan transferred back to Afghanistan have been detained at a detention facility built by the United States," he wrote.
Of the 183 men currently held at Guantanamo, 22 have had their habeas cases resolved -- 10 were ordered released but are still being held and 12 have had their detentions upheld.
It was unclear, however, how many of the other 161 might have cases pending. Some detainees have refused American lawyers' offers to sue on their behalf, apparently rejecting the authority of any U.S. court to sit in judgment on them. An Obama administration panel has determined about 50 of those should be held indefinitely without charges.
(Rosenberg reports for The Miami Herald.)